The corporate scandals that seemed to come in waves in the late 1990s and early 2000s, encompassing companies such as Enron, Tyco and WorldCom, precipitated a public and Congressional outcry: “But where were the lawyers?” Were the lawyers advising and embedded within public companies supposed to be the legal and ethical ‘gatekeepers’? Were they not supposed to serve the function of on-board policemen, holding the line against misconduct by company executives?

Given the need for someone to blame for corporate excesses, and worse, lawyers certainly became an easy target for criticism. After all, lawyers have an ethical duty not to counsel a client to commit a crime or otherwise aid or participate in criminal conduct. But lawyers have an equal, and some might say countervailing, duty to be zealous advocates for their clients’ positions. They are often expected to push the envelope in crafting creative solutions to business problems. And, they are generally protected when they take reasonable positions that are grounded in fact and represent good-faith interpretations of the law.

The idea that the proper role of a lawyer is not to act simply as a mouthpiece for his or her client, but as something of a gatekeeper, however one might define such a duty, is nothing new. Elihu Root, a prominent New York lawyer whose practice around the turn of the last century included representing Andrew Carnegie, famously said, “Half of the practice of a decent lawyer consists of telling would-be clients that they are damn fools and should stop”.

Apr-Jun 2017 Issue

Foley & Lardner LLP